8
Punishment in these late modern times is marked by two striking developments.
The first is a stunning increase in the number of persons incarcerated.
Federal and state prison populations nationwide have increased from
less than 200,000 in 1970 to more than 1,300,000 in 2000, with another
600,000 persons held in local jails (see
figures 1a and 1b).1 Today, approximately
2 million men and women are incarcerated in prisons and jails in this
country.The intellectual rationale for this increase is provided by
"incapacitation theory"—the idea that a hardcore 6 percent of
youths and young adults are responsible for the majority of crime and
that locking up those persistent offenders will significantly impact
crime rates.

A second dramatic development is the
popularity of "order-maintenance policing," an approach to policing
that emphasizes creating and maintaining orderly public spaces. This
policy is driven by the "broken windows theory"—the idea that
tolerating such minor infractions as graffiti spraying, aggressive panhandling,
prostitution, public urination, and turnstile jumping encourages serious
violent crime by sending a signal that the community is not in control.
The broken windows theory has ignited a virtual "revolution in American
policing," also known as the "Blue Revolution."2
And its popularity in this country is apparently matched by its appeal
abroad. In 1998 alone, representatives of over 150 police departments
from foreign countries visited the New York Police Department for briefings
and instruction in order-maintenance policing. For the first ten months
of 2000, another 235 police departments—85 percent of them from
abroad—sent delegations to One Police Plaza.3
In New York City, where broken windows policing was introduced under
the administration of Mayor Rudolph Giuliani and his first police commissioner,
William Bratton, the order-maintenance strategy produced an immediate
surge in arrests for misdemeanor offenses (see
figures 2a and 2b).

These two developments have common intellectual
roots in the second half of the twentieth century, primarily in the
writings of James Q. Wilson, and before him, Edward C. Banfield.4
The popularization of incapacitation theory can be traced in large part
to Wilson's 1975 collection of essays, Thinking About Crime, where
he famously wrote: "Wicked people exist. Nothing avails except to set
them apart from innocent people….We have trifled with the wicked,
made sport of the innocent, and encouraged the calculators. Justice
suffers, and so do we all."5 Like Banfield
before him—who, in The Unheavenly City, similarly advocated
"abridg[ing] to an appropriate degree the freedom of those who in the
opinion of a court are extremely likely to commit violent crimes"—Wilson
argued strenuously for increased prison sentences for hardcore offenders.6

The broken windows theory can also be
traced to Wilson, who, with his co-author George L. Kelling, wrote an
influential Atlantic Monthly article in 1982 called "Broken Windows,"
a nine-page anecdotal essay that revolutionized policing. Wilson there
spelled out and popularized the idea of cracking down on minor disorder
as a way to combat serious crime.

Conservative policymakers tend to argue
for both incapacitation and broken windows policing. William
Bennett, John DiIulio, Jr., and John Walters, in their provocative 1996
work, Body Count: Moral Poverty…and How to Win America's War
Against Crime and Drugs—the book that coined the expression
"super-predators"—advocate for both lengthened sentences for hardcore
offenders and order-maintenance policing. The first step in the war
on crime and drugs, they argue, is to stop "revolving-door justice."
"The truth," they declare, "is that virtually all of those in prison
in this country are just what most average Americans suppose them to
be—…duly tried and convicted violent and repeat criminals…[T]he
problem is that they too often escape justice entirely, get released
early, commit more crimes, and manufacture more misery for victims,
their families, and society."7 At the same
time, Bennett, DiIulio, and Walters praise and recommend to others New
York City's model of policing, what they call the "Bratton miracle."8

What is striking, though, is that among
progressives, liberals, and the full spectrum of Democrats, order-maintenance
policing has been hailed as the only viable and feasible alternative
to the three-strikes and mandatory minimum laws that have resulted
in massive incarceration. The power and appeal of broken windows policing
for liberals derives precisely from its opposition to incapacitation
theory. Order maintenance is billed as a milder public-order measure.
It represents, according to some progressives, one of the only "politically
feasible and morally attractive alternatives to the severe punishments
that now dominate America's inner-city crime-fighting prescriptions."9
This is precisely what makes broken windows policing "progressive."

As a result, order maintenance is popular
today in a way that massive incarceration is not. Whereas the prison
boom has received a lot of criticism in the media, among public officials,
and in the academy, broken windows policing has received far less attention
and scrutiny. With few notable exceptions, order maintenance continues
to receive extremely favorable reviews in policy circles, academia,
and the press.

This popularity was powerfully demonstrated
during the 2001 mayoral campaign in New York City, especially before
9/11. In the early Democratic primaries, all the candidates were jockeying
to be the next Giuliani on crime. The first question at the August 28,
2001 Democratic mayoral debate—what if the squeegee men come
back?—had a domino effect on the candidates: they fell over
each other pledging to maintain the crackdown on quality-of-life offenses.
Mark Green, who ultimately won the Democratic primary, sought, obtained,
and heavily publicized the endorsement of William Bratton, who appeared
slated to return as police commissioner in a possible Democratic administration.
As former mayor Edward Koch remarked, "Giuliani has so impacted New
Yorkers by the reduction in crime that any candidate who doesn't agree
with that has no chance."10

After the election, the Manhattan Institute—a
conservative New York think tank—began waging a renewed campaign
in support of broken windows policing. A few days before Michael Bloomberg's
inauguration as mayor, the Institute issued a new report on New York-style
policing. Written by lead author George Kelling—co-author (with
James Q. Wilson) of the "Broken Windows" article and of the book Fixing
Broken Windows—the report is titled Do Police Matter? An
Analysis of the Impact of New York City's Police Reforms. The report
contends that economic improvements and the end of the crack epidemic
had no significant effect on overall drops in violent crime in
New York City. In contrast, order maintenance policing exerted "the
most significant influence" on violent crime trends.11

The Manhattan Institute report was issued
with a simulcast editorial comment by the authors in the New York
Post. "So what does all this mean?" they ask. "First, it means that
New Yorkers should stop listening to critics who contend that police
tactics matter little, if at all, in determining crime rates." More
poignantly, the authors note, "these critics have been parroting what
is virtual dogma in criminal-justice circles, that crime is caused by
'root causes' such as racism, poverty and social injustice. This study
places the 'root cause' theory of crime in serious jeopardy."12
The New York Post carried its own editorial the same day, capturing
in its pithy title the thrust of the Manhattan Institute report: "It's
the Cops, Stupid."13

Two days after Bloomberg's inauguration,
the Manhattan Institute caught the ear of The New York Times,
arguing on the Op-Ed pages that broken windows policing "is not just
smart policing; it's smart politics." In an editorial entitled "A Policing
Strategy New Yorkers Like," Kelling emphasizes the popularity of enforcing
quality-of-life laws, especially among minorities. "African-Americans,
Hispanics and Asian-Americans all favor quality-of-life enforcement
even more strongly than whites," Kelling claims. And for those who thought
that Giuliani and Bratton were the chief architects of broken windows
policing, Kelling offers a new narrative: it was Raymond Kelly, Bloomberg's
new police commissioner, who, as police commissioner for former Mayor
David Dinkins, started broken windows policing in the fall of 1993.14

Questionable social science

The result is that today, broken windows
theory seems more popular than ever. And the breadth of its popularity
reflects the fact that it is understood as an alternative to
the incarceration explosion we have witnessed in the latter part of
the twentieth century. It has, in effect, captured the liberal imagination.

The difficulty is that there is no good
evidence for the theory that disorder causes crime. To the contrary,
the most reliable social scientific evidence suggests that the theory
is wrong. The popularity of the broken windows theory, it turns out,
is inversely related to the quality of the supporting evidence. The
most recent study by the Manhattan Institute is a good illustration.

The goal of the Manhattan Institute study
is to separate out "the relative contributions of police actions, the
economy, demographics, and changing drug use patterns on crime" in New
York City. The study's innovation is to achieve this separation by treating
the city as 75 separate and comparable entities. "Rather than one city,"
they explain, "we view New York as 75 separate entities, corresponding
to the 75 police precincts."15 Because economic
conditions, for example, vary considerably across the 75 precincts,
Kelling and his co-authors could look across the 75 cases and see if
favorable economic conditions are associated with reduced rates of violent
crime.

The aim of the research, then, is to
determine the relative impact of four factors—broken windows policing,
economic indicators, young-male population shifts, and the decline in
crack cocaine consumption—on violent crime in the 75 precincts
of New York City. Is the decline in violent crime fully explained by
an improved economy, a drop in the number of young men in the population,
and reduced crack cocaine use? Or does the increase in arrests for minor
offenses also play a significant role?

Naturally, the complexities in a study
of this kind begin with the need to provide a precise measure of all
the relevant factors. To measure broken windows policing, the authors
use precinct-level reports of total misdemeanor arrests. To measure
the effect of the crack epidemic, they use borough-level reports of
hospital discharges for cocaine-related episodes. For the number of
young males, they use precinct-level school enrollment data. And for
unemployment, they use borough-level gross unemployment data. Finally,
to measure violent crime, they use precinct-level reports of four violent
offenses (murder, rape, felonious assault, and robbery). In all cases,
they use data from 1989 to 1998.16

Their findings are striking. They conclude
that the "measure of 'broken windows' policing is the strongest predictor
of precinct violent crime in the model." Looking at the change over
time, they find that neither demographics nor drug use patterns are
significantly related to the drops in precinct violent crime over the
ten-year study period. Unemployment is related to changes in
crime rates, but in the opposite direction to what is generally
assumed. As it turns out, "an increase in borough unemployment
is related to a decrease in precinct violent crime," Kelling
concludes.

The bottom line: "The average NYPD
precinct during the ten-year period studied could expect to suffer one
less violent crime for approximately every 28 additional misdemeanor
arrests made." Over the period from 1989 to 1998, increased rates
of misdemeanor arrests therefore prevented, by their calculation, over
60,000 violent crimes or 5 percent of the overall decline.17
The study offers, in the authors' words, "the most-definitive possible
answer to the question of whether police mattered in New York City during
its intense crime-drop."18 It accomplishes
this remarkable task with essentially one regression analysis and one
page of statistical discussion. And the answer is: Yes.

But their case is remarkably weak and
inconclusive. First, there are numerous alternative explanations that
may account for the associations between the number of misdemeanor arrests
and violent crime, including, for instance, the deterrent effect of
police presence or even, possibly, some effect from incapacitating potential
offenders. The study tells us nothing about the causal mechanism,
if there is one, and does not begin to address the symbolic effect of
orderliness. Moreover, it is not at all clear that individual precincts
are the proper comparison groups. The Manhattan Institute study focuses
on individual precincts and asks, in effect, whether high unemployment
in a particular precinct is associated with a high rate of violent crime
in that same precinct. But some of the precincts are geographically
limited—the sixth precinct in Greenwich Village, for example,
covers only .79 square miles. So the effects of employment, drug use,
and policing are likely to spill over from one precinct to another.
But if a high rate of unemployment in one precinct leads criminals from
that precinct to focus their activities on other precincts where the
economy is doing better and people are working, then the Manhattan Institute
study would conclude that economic performance does not generate serious
crime.

Even if we were to accept the research
design, though, the authors do not have the proper data, and so could
not carry through on their apparently ingenious idea. Unemployment data
do not exist at the precinct level, so they instead use borough-level
data: in effect, they assume that every Manhattan precinct faces the
same economic conditions. Similarly, hospital discharges for cocaine-related
episodes (even if that were a reliable index of crack as opposed to
powdered cocaine consumption) are also borough-level data: in effect,
the authors assume that every Brooklyn precinct has the same drug problem.
So the report is essentially comparing apples and oranges: precinct-level
data for crime, broken windows policing, and demographics, and borough-level
data for gross unemployment and cocaine consumption. As Alfred Blumstein
of Carnegie Mellon University recently commented, the data used to measure
unemployment are too blunt and unreliable to do any damage to the idea
that the economic boom and drop-off in crack cocaine use were important
contributors to the national and municipal drop in violent crime.19

The Manhattan Institute report is just
the most recent unsuccessful attempt to establish the broken windows
claim. The previous research that George Kelling credited with "empirically
verifying the 'Broken Windows' hypotheses"—Wesley Skogan's 1990
study Disorder and Decline: Crime and the Spiral of Decay in American
Neighborhoods—has also been discredited on the specific issue
of establishing a connection between disorder and crime.20
With data from thirty neighborhoods, Skogan found a strong connection
between residents' perceptions of neighborhood disorder and their robbery
victimization, holding constant the level of poverty and stability in
the neighborhood and the race of the residents. But Skogan failed to
reveal the absence of any similar connection between disorder and burglary,
rape, physical assault, or purse-snatching victimization—four
other crime variables in his data set.21

The other set of studies that has traditionally
been offered in support of the broken windows theory—studies that
focus on the effect of aggressive police arrest practices on crime rates—offers
little if any support. The debate here was in part triggered, again,
by James Q. Wilson in his 1968 book on the Varieties of Police Behavior,
and in his study with Barbara Boland on the effects of police arrests
on crime.22 Wilson and Boland hypothesized
that aggressive police patrols, involving increased stops and arrests,
have a deterrent effect on crime. A number of contributions ensued,
both supporting and criticizing these findings, but, as Robert Sampson
and Jacqueline Cohen suggest, the results thus far have been "mixed."23
There has been some excellent new work; but it is unable to distinguish
between the broken windows theory and more traditional explanations
such as increased police presence, contact, and surveillance.24
To a certain extent, the problem is endemic to the design of these studies.
As Sampson and Cohen acknowledge with regard to their own work, "[i]t
is true that our analysis was not able to choose definitely between
the two alternative scenarios."25

The most comprehensive and thorough study
of the broken windows theory to date is Robert Sampson and Stephen Raudenbush's
1999 study entitled Systematic Social Observation of Public Spaces:
A New Look at Disorder in Urban Neighborhoods. Their study is based
on extremely careful data collection. Using trained observers who drove
a sports utility vehicle at five miles per hour down every street in
196 Chicago census tracts, randomly selecting 15,141 streets for analysis,
they were able to collect precise data on neighborhood disorder. Sampson
and Raudenbush found that disorder and predatory crime are moderately
correlated, but that, when antecedent neighborhood characteristics (such
as neighborhood trust and poverty) are taken into account, the connection
between disorder and crime "vanished in 4 out of 5 tests—including
homicide, arguably our best measure of violence." They acknowledge that
disorder may have indirect effects on neighborhood crime by influencing
"migration patterns, investment by businesses, and overall neighborhood
viability." But, on the basis of their extensive research, Sampson and
Raudenbush conclude that "[a]ttacking public order through tough police
tactics may thus be a politically popular but perhaps analytically weak
strategy to reduce crime."26

The New York story

If we look at the criminological evidence,
the results are no more helpful to broken windows proponents. The basic
fact is that a number of large U.S. cities—Boston, Houston, Los
Angeles, San Diego, and San Francisco, among others—have experienced
significant drops in crime since the early 1990s, in some cases proportionally
larger than the drop in New York City's crime. But many of these cities
have not implemented the type of aggressive order-maintenance policing
that New York City did. One recent study found that New York City's
drop in homicides, though impressive, is neither unparalleled nor unprecedented.
Houston's drop in homicides of 59 percent between 1991 and 1996 outpaced
New York City's 51 percent decline over the same period, and both were
surpassed by Pittsburgh's 61 percent drop in homicides between 1984
and 1988.27 Another study looked at the rates
of decline in homicides in the seventeen largest U.S. cities from 1976
to 1998 and found that New York City's recent decline, though above
average, was the fifth largest, behind San Diego, Washington, D.C.,
St. Louis, and Houston.28

A straight comparison of homicide and
robbery rates between 1991 and 1998 reveals that although New York City
is again in the top group, with declines in homicide and robbery rates
of 70.6 percent and 60.1 percent respectively, San Diego experienced
larger declines in homicide and robbery rates (76.4 percent and 62.6
percent respectively), Boston experienced a comparable decline in its
homicide rate (69.3 percent), Los Angeles experienced a greater decline
in its robbery rate (60.9 percent), and San Antonio experienced a comparable
decline in its robbery rate (59.1 percent). Other major cities also
experienced impressive declines in their homicide and robbery rates,
including Houston (61.3 percent and 48.5 percent respectively) and Dallas
(52.4 percent and 50.7 percent respectively).29

Many of these cities, however, did not
implement New York-style order-maintenance policing. The San Diego police
department, for example, implemented a radically different model of
policing focused on community-police relations. The police began experimenting
with problem-oriented policing in the late 1980s and retrained the police
force to better respond to community concerns. They implemented a strategy
of sharing responsibility with citizens for identifying and solving
crimes. But while recording remarkable drops in crime, San Diego also
posted a 15 percent drop in total arrests between 1993 and 1996, and
an 8 percent decline in total complaints of police misconduct filed
with the police department between 1993 and 1996.30

San Francisco also focused on community
involvement and experienced decreased arrest and incarceration rates
between 1993 and 1998. San Francisco's felony commitments to the California
Department of Corrections dropped from 2,136 in 1993 to 703 in 1998,
whereas other California counties either maintained or slightly increased
their incarcerations. San Francisco also abandoned a youth curfew in
the early 1990s and sharply reduced its commitments to the California
Youth Authority from 1994 to 1998. Despite this, San Francisco experienced
greater drops in its crime rate for rape, robbery, and aggravated assault
than did New York City for the period 1995 through 1998. In addition,
San Francisco experienced the sharpest decline in total violent crime—sharper
than New York City or Boston—between 1992 and 1998.31

Other cities, including Los Angeles,
Houston, Dallas, and San Antonio, also experienced significant drops
in crime without adopting as coherent a policing strategy as New York
or San Diego. The fact is, there was a remarkable decline in crime in
many major cities in the United States during the 1990s. New York City
was certainly a very high performer. But numerous major U.S. cities
have achieved substantial declines in crime using a variety of different
policing strategies. It would be simplistic to attribute the rate of
the decline in New York City solely to the quality-of-life initiative.

A number of other factors seem to have
contributed to declining crime rates in New York City, including a shift
in drug use patterns from crack cocaine to heroin, favorable economic
conditions in the 1990s, new computerized tracking systems that speed
up police responses to crime, a dip in the number of eighteen to twenty-four-year-old
males, as well as shifts in adolescent behavior. There have also been
important changes at the NYPD, including a significant increase in the
sheer number of police officers. Mayor Dinkins hired over two thousand
new police officers under the Safe Streets, Safe City program in 1992,
and Giuliani hired another four thousand officers and merged about six
thousand Transit and Housing Authority officers into the ranks of the
NYPD. As a result, from 1991 to 2000, the NYPD force increased almost
by half, up by 12,923 police officers (including those transferred from
Transit) from a force of 26, 856 police officers in 1991 to 39,779 in
2000. Excluding the Transit merger, the police force grew by almost
a quarter.32 As a result, the NYPD now has
the largest police force in the country and the highest ratio of police
officers to civilians of any major metropolitan area.

Moreover, beginning in January 1994,
Giuliani and Bratton instituted major changes in police management.
They started relying more heavily on new computer technology to compile
crime statistics, to convert the data into maps and charts that inform
the police about crime patterns in different precincts, and to monitor
and review police performance at the district level through regular
meetings. The data and meetings allow the police to target their enforcement
to changing crime trends. Bratton also shook up his management team,
cut out layers of bureaucracy, aggressively promoted younger and more
ambitious managers, and delegated more authority to precinct commanders.33
In addition, Giuliani and Bratton implemented a number of different
police strategies—including gun-oriented policing and enhanced
drug enforcement initiatives—that significantly overhauled the
way the NYPD approached crime fighting.

So even if we were prepared to attribute
a significant role in the drop in crime in New York City to changes
at the NYPD—despite comparably sharp drops in crime in cities
that did not institute similar policing strategies—we would still
need to ask if it was the broken windows strategy that did the trick,
or if instead the drop in crime owes to the increased surveillance afforded
by a more aggressive policy of arrests and stop-and-frisks. The answer
to this question has to be the increased surveillance.

What the quality-of-life initiative gives
the NYPD is a legal reason to seize, search, and run checks on persons
committing or suspected of committing minor offenses. This has important
consequences for the detection and prevention of crime, which was powerfully
demonstrated in the now-famous case of John Royster. Royster was accused
of fatally beating a flower shop owner on Park Avenue—as well
as several brutal attacks on women, including an infamous assault on
a piano teacher in Central Park that left her severely impaired. Royster
was identified after he was arrested for turnstile jumping in the subway.
Upon arrest, a computer matched his prints with fingerprints left at
the scene of the Park Avenue murder. This is not a case in which the
restoration of public order sent a message to criminals that they can't
commit serious crime. It is not the broken windows theory. It is the
old-fashioned idea that more police contact, more background checks,
and more fingerprinting will produce better crime detection.

Soon after the original strategy was
first tested in New York subways in 1990, William Bratton realized the
full potential of order-maintenance crack-downs and sweeps. "For the
cops," Bratton exclaimed, they were "a bonanza. Every arrest was like
opening a box of Cracker Jack. What kind of toy am I going to get? Got
a gun? Got a knife? Got a warrant? Do we have a murderer here? Each
cop wanted to be the one who came up with the big collar. It was exhilarating
for the cops and demoralizing for the crooks."34
The first quality-of-life experiment in the New York City subways demonstrated
the benefits early on. With misdemeanor arrests up more than 50 percent
in New York City, and with routine fingerprinting and record checking,
the quality-of-life initiative produced a significant increase in arrests
on outstanding warrants and a reduction in gun carrying.

The bottom line is that the broken windows
theory—the idea that public disorder sends a message that encourages
crime—is probably wrong. As Sampson and Raudenbush observe, "bearing
in mind the example of some European and American cities (e.g., Amsterdam,
San Francisco) where visible street level activity linked to prostitution,
drug use, and panhandling does not necessarily translate into high rates
of violence, public disorder may not be so 'criminogenic' after all
in certain neighborhood and social contexts."35

The title of the new Manhattan Institute
report—Do Police Matter?—asks a good question, with
an obvious answer: Yes. The police are uniquely suited to identifying
crime trends and patterns and to implement innovative problem-solving
techniques to deal with emerging crime situations. Few other governmental
agencies or private companies have the immediate information, know-how,
human resources, technology, and skills to perform these tasks. And
the Manhattan Institute report offers a few good illustrations of problem-solving
policing at its finest in New York City. When Brooklyn's Flatbush precinct
experienced a rash of automobile airbag thefts in February and March
2000, for example, the precinct executives implemented numerous strategies—including
placing a decoy car in an at-risk area, equipping airbags with tracking
devices, readjusting officer deployment, and publicizing these efforts—that
resulted in success.

But that question is too easy and is
not the right one to ask. The real question is whether an agency like
the NYPD needs to implement a policy of making large numbers of arrests
for minor misdemeanors and public disorder violations as a primary strategy
for combating violent crime. The answer to that question is equally
clear: No. The best social scientific and criminological evidence
suggests that minor social and physical disorder is not causally related
to violent crime.

Troubling consequences

But the Manhattan Institute report does,
perhaps unwittingly, reveal the true face of broken windows policing.
Since the publication of Wilson and Kelling's Atlantic Monthly
article, there has always been a lingering question concerning the implementation
of a broken windows approach. After all, if the aim is improved public
order, couldn't that be achieved with urban renewal projects, homeless
shelters, and social workers, as well as or instead of more police arrests?
Now we know, from a reliable source. The only number used in the Manhattan
Institute report to measure the extent of broken windows policing is
the number of precinct-level misdemeanor arrests. The authors made a
"decision to use arrests for misdemeanors as our measure of 'broken
windows' enforcement."36 The broken windows
theory, it turns out, is not so much about public order, as it is about
arresting people for misdemeanor and public disorder offenses.

And, of course, that is what we have
seen in New York City. Adult misdemeanor arrests in the city have increased
throughout the 1990s. According to the New York State Division of Criminal
Justice Services, in 1993, the year before Giuliani and Bratton began
implementing broken windows policing, total adult misdemeanor arrests
stood at 129,404. By the year 2000, the number was up to 224,663—an
increase of almost 75 percent. What is particularly interesting is that
the vast majority of those arrests were for misdemeanor drug charges,
which are up almost 275 percent from 27,447 in 1993 to 102,712 in 2000
(see figure
3). Driving while intoxicated (DWI) arrests were down by almost
40 percent over the period (from 5,621 in 1993 to 3,432 in 2000), while
other misdemeanor arrests increased by only a quarter (from 96,336 in
1993 to 118,520 in 2000).37 At the same time,
the NYPD implemented an aggressive stop-and-frisk policy. Between 1997
and 1998, for instance, the Street Crime Unit—with approximately
435 officers at the time—stopped and frisked about 45,000 people.38

The trouble is, policing strategies that
deliberately emphasize arresting misdemeanor and public order offenders—rather
than issuing warnings or implementing alternative problem-solving techniques—have
significant racial consequences. The fact is that in New York City,
and the United States more generally, adults arrested for misdemeanors
are disproportionately African-American in relation to their representation
in the community. In 2000, for example, slightly over 50 percent of
all adults arrested for misdemeanors in New York City were African-American
(113,336 of the total 224,663 adults arrested). Slightly over 50 percent
of adults arrested for disorderly conduct (19,563 of the total 38,780)
and 45.6 percent of adults arrested for loitering were African-American.
For prostitution and drug possession, the proportions are 40.7 percent
and 51.7 percent respectively. (For DWI, interestingly, the proportion
is only 22.3 percent).39 Yet African Americans
(in 2000) represented only 24.6 percent of the New York City population.40
Persons of Hispanic descent represented 31.5 percent of all adult misdemeanor
arrests, whereas they constituted only 25.1 percent of the city's population.41
In contrast, European Americans represented 48.8 percent of the population,
and accounted for only 15.5 percent of adults arrested on misdemeanor
charges in 2000.

These disparities hold true for large
cities across the United States. In 1999, for instance, 43.4 percent
of adults arrested for vagrancy in large metropolitan areas were African-American;
34.2 percent, 39 percent, and slightly over 40 percent of those arrested
for disorderly conduct, prostitution, and drug abuse charges, respectively,
were African-American. (Again, curiously, only 10.7 percent of those
arrested for driving under the influence were black). Yet African Americans
represent less than 15 percent of the total population of these metropolitan
areas.42

The point is not that the police are
consciously targeting black misdemeanants, but simply that more blacks
are arrested for misdemeanors given their proportion in the overall
population. In other words, the decision to arrest misdemeanants—adopting
that policy in preference to other policing strategies—is a choice
with significant distributional consequences for African Americans.

Additionally, there is good evidence
that New York City's policy of aggressive stop-and-frisks was in fact
implemented in a racially discriminatory manner. In 1999, New York State
Attorney General Eliot Spitzer, with the assistance of Columbia University's
Center for Violence Research and Prevention, analyzed 174,919 stop-and-frisk
"UF-250" forms—the forms that NYPD officers are required to fill
out in a variety of stop encounters—from the period January 1,
1998 through March 31, 1999. Spitzer found that the raw number of stops
was higher for minorities—African Americans and Hispanics—than
whites relative to their respective proportion of the population. Spitzer
then reanalyzed the raw numbers, this time taking account of the different
crime rates and the population composition in different precincts, and
found significant disparities across all precincts and crime categories:
"in aggregate across all crime categories and precincts citywide, blacks
were 'stopped' 23% more often (in comparison to the crime rate) than
whites. Hispanics were 'stopped' 39% more often than whites." Spitzer
concluded from the data that "even when crime data are taken into account,
minorities are still 'stopped' at a higher rate than would be predicted
by both demographics and crime rates."43

Broken-windows policing has come with
other price tags as well. New York City, for instance, experienced illegal
strip searches, mounting financial liability on police misconduct charges,
clogged courts, wasted resources, and many traumatic encounters for
ordinary citizens. The simple fact is that arrests and prosecutions
are expensive: a typical prostitution prosecution—one of the offenses
targeted by the quality-of-life initiative—costs upwards of $2,000.
That's a lot of money for a single transaction. Moreover, a policy of
arrest may have unintended consequences. Someone arrested for turnstile
jumping may be fired for missing work; and strained police-civilian
relations can create friction between the community and the police force
that may be detrimental to solving crimes.

What does this say about order-maintenance
as a police technique? First, it is an illusion to think that broken
windows policing operates through increased orderliness. Second, order-maintenance
probably contributes to fighting crime through enhanced surveillance.
Third, broken windows policing comes at a significant cost, with negative
distributional consequences for African Americans and other minorities.
Fourth, there are alternative strategies of problem-solving policing.

Propensities and human nature

The lack of empirical evidence is a
signal that something is wrong with broken windows at the theoretical
level. To understand what is wrong, it may be useful to return to the
two trends in punishment in modern society, and consider the similarities
between broken windows and the incapacitation theory. The surprising
fact is that, despite the rhetoric of progressives and liberals, broken
windows and incapacitation theory share the same assumptions and underlying
logic about the disorderly or delinquent—namely, that these people
are by nature disposed toward deviance and that they have a compelling
propensity to commit crime. Both theories adopt a common theoretical
framework: they both seek to build on the classical model of criminology
by incorporating a thicker conception of human preferences based on
notions of class culture, human nature, and social norms.

The classical or utilitarian model of
criminal behavior was based on the idea that people are not simply impulsive;
they act more or less rationally, with an eye to avoiding pain and achieving
pleasure. So reducing crime meant, among other things, increasing both
the certainty and severity of punishment. Both incapacitation and broken
windows theory build on this fundamental assumption. "There is an element
of calculation—indeed, a very considerable one—in practically
all criminal behavior," Edward Banfield emphasized. "To be sure, impulse
characteristically enters into some types of crime more than into others,
but an element of rationality is hardly ever absent."44
James Q. Wilson and his co-author in Crime and Human Nature,
Richard Herrnstein, were equally clear: "Our theory rests on the assumption
that people, when faced with a choice, choose the preferred course of
action," they explained.45 Wilson and Herrnstein's
conceptual project was precisely to enrich the classical model by infusing
sociological and political insights, while retaining the premise of
rational action. Proponents of broken windows policing follow in these
footsteps. They too assume rational action on the part of the disorderly,
informed by the cues and norms of disorderliness.

More importantly, both theories deploy
similar means for enriching the rational action model. First, they each
assume a much richer and more deeply ingrained set of human preferences.
They each imagine the propensity to commit crime to be a stable social
and psychological characteristic. Banfield developed the idea of the
"lower-class individual" who is present-oriented to a fault and unable
fully to appreciate future benefits and costs. The attitudes, perceptions,
and values of the "lower-class individual" are deeply embedded in his
psyche and ways, and shape his behavior. Wilson focused on the notion
of "human nature" and the "constitutional factors" that shape the way
we act and evaluate our options. Proponents of the broken windows strategy
develop a theory about the expressive nature of our preferences—the
social meanings that people value—and accordingly divide the world
into "committed law abiders" and "individuals who are otherwise inclined
to engage in crime."46

The shared outlook is that people in
different social groups have different character traits, patterns of
behavior, values, tastes, and perceptions. These deep-seated propensities
to criminality, recalcitrant to change, make both theories tick. They
explain and identify the 6 percent hardcore offenders, the super-predators
that need to be incapacitated. But they also explain the distinction
between the disorderly and the law-abiders that makes the broken windows
theory work. Broken windows, after all, is grounded on these categorical
distinctions. The central premise of the theory is that disorder operates
on honest people and on the disorderly in different ways. Neighborhood
disorder leads honest people to move out of the neighborhood or to lock
themselves in their homes. But neighborhood disorder leads the disorderly
to move into the neighborhood and commit crimes. Order and disorder
operate differently on law-abiders and the disorderly.

Second, both theories argue for more
varied interventions aimed at preventing people with deep, relatively
fixed propensities to criminality from acting on those propensities.
Because these propensities are resistant to change, it may no longer
be cost-effective, for instance, to try to rehabilitate or otherwise
reconfigure the present-oriented. In fact it may no longer be possible.
"The fact is," Banfield emphasized, "that no one knows how to change
the culture of any part of the population—the lower class or the
upper, whites or Negroes, pupils or teachers, policemen or criminals."47
As a result, policy making must focus instead on changing the inducements
to commit crime.

Banfield proposed, among other things,
eliminating the minimum wage and reducing the school-leaving age in
order to remove impediments to the employment of the unskilled and unschooled.
He advocated a negative income tax for the more competent poor and intensive
birth-control guidance for the rest. These policies were intended to
change the situational inducements to crime, by giving youths work and
relieving poor women of the burdens of child-rearing. More generally,
he advocated incarceration for those "who in the opinion of a court
are extremely likely to commit violent crimes."48
In his essays in Thinking About Crime, James Q. Wilson picked
up on this suggestion and strenuously argued for incarcerating a larger
number of habitual offenders. Drawing on his earlier study of police
departments, Wilson also argued, in the later "Broken Windows" essay,
for greater attention to neighborhood cues of order and disorder.

In sum, the broken windows theory has
the same intellectual roots and the same conceptual structure as incapacitation
theory. The notion of ingrained propensities to commit crime lies behind
both the idea of a hardcore habitual offender who must be incarcerated
and of a disorderly person who must be arrested, controlled, and relocated.

The theories reflect, more than anything,
our modern conception of the disorderly as an unattached, young, most
often racialized other, with a powerful tendency to commit crime and
cause disorder. It is the youth or young adult, threatening, defiant,
suspicious, often black, wearing distinctive designer-label clothes.
Or the down-and-out street person in a dirty oversized coat. Or the
squeegee man, the panhandler, the homeless person, the turnstile jumper,
the public drunk. The "disreputable or obstreperous or unpredictable
people."49 "Unattached males, the homeless,
and the aimless [who] live in boarded up buildings, seedy residential
hotels and flophouses."50 "[I]ndividuals
who are otherwise inclined to engage in crime."51
Or, as James Q. Wilson wrote in 1968, the "teenager hanging out on a
street corner late at night, especially one dressed in an eccentric
manner, a Negro wearing a "conk rag" (a piece of cloth tied around the
head to hold flat hair being "processed"—that is, straightened),
girls in short skirts and boys in long hair parked in a flashy car talking
loudly to friends on the curb, or interracial couples—all of these
are seen by many police officers as persons displaying unconventional
and improper behavior."52

We know the disorderly when we see them.
We can identify them easily. From their clothing, their habits, their
glitter, their grit, their smell, their look. We just know who they
are—entre nous.

A broken theory

Or do we really? After all, what exactly
is the distinction between eccentricity, nonconformity, unconventionality,
difference, disorder, and criminality? What makes distinctive clothes,
youthful exuberance, or loitering disorderly? Why does order maintenance
focus so heavily on certain types of street disorder and not others?
Police brutality is a form of disorder, yet it appears nowhere as a
target of broken windows policing. Everyday tax evasion—paying
cash to avoid sales tax, paying nannies under the table, using an out-of-state
address—is disorderly. So are public corruption, sham accounting
practices, nepotism, insider trading, and fraud. Why does broken windows
focus on the dollar-fifty turnstile jump rather than on the hundred-million
dollar accounting scam? And what exactly is the meaning of neighborhood
disorder? Sure it may signal that a community is not in control of crime.
But it may also reflect an alternative subculture, political protest,
or artistic creativity. An orderly neighborhood may signal commercial
sex, wealthy neighbors with personal bodyguards, foreign diplomats,
a strong mafia presence, or a large police force.

The central claim of the broken windows
theory—that disorder causes crime by signaling community breakdown—is
flawed. The categories of "disorder" and "the disorderly" lie at the
heart of the problem. Those categories do not have well-defined boundaries
or settled meanings. When we talk about "disorder," we are really referring
to certain minor acts that some of us come to view as disorderly
mostly because of the punitive strategies that we inflict as a society.
We have come to identify certain acts—graffiti spraying, litter,
panhandling, turnstile jumping, and prostitution—and not others—police
brutality, accounting scams, and tax evasion—as disorderly and
connected to broader patterns of serious crime. Hanging out on the front
steps of a building or loitering with neighbors only signals that the
community is not in control if hanging out or loitering is perceived
as violating certain rules of conduct. But, of course, that depends
on the neighborhood—and in some, in fact, it reflects strong community
bonds and informal modes of social control. Graffiti only signals that
the neighborhood is indifferent to crime if graffiti is viewed
as violating the rules of the community. But graffiti is sometimes understood
to be political or artistic expression or social commentary.

Order-maintenance policies, ironically,
have the effect of reinforcing the idea that disorder causes crime.
The "squeegee man," for instance, has become the barometer of crime
control in New York City primarilybecause of the quality-of-life
campaign. And one might speculate that, as order maintenance has become
more and more popular, the categories of the disorderly and law-abider
may have become slightly more fixed in meaning. The broken windows theory
has, in this sense, a self-reinforcing logic: it helps shape the perceptions,
emotions, and judgments we form about people who are homeless, hustling,
or panhandling. Still, the best social scientific evidence suggests
that there are mixed signals associated with disorder—disorder
does not correlate with crime in most tests. In sum, it is an illusion
to believe that the order in order maintenance is necessary to combat
crime.

When we peel away disorder from crime,
it becomes clear that the model of orderliness offers to contemporary
society, first, a classic mode of enhanced surveillance. The criminological
evidence suggests that it is not the order, but the surveillance associated
with broken windows policing that has probably contributed to the drop
in crime in a city like New York. It is the increased arrests, background
checks, fingerprint comparisons, stop-and-frisks, line-ups, and informants.
It is, in effect, the increased police-civilian contacts. Are they necessary?
The answer is no. Many cities in the United States have experienced
remarkable drops in crime during the 1990s without implementing similar
order maintenance strategies. The costs are simply too steep, especially
to minority communities. And there are alternatives, such as the problem-solving
policing discussed, in part, in the new Manhattan Institute report.

Second, order maintenance policing provides
a way to enforce an aesthetic preference, under the guise of combating
serious crime. Order maintenance is a way to get homeless people, panhandlers,
and prostitutes off the street. It is a way to keep the avenues clean
of graffiti and litter. Broken windows policing is a way to repossess
red light districts and displace street vendors, panhandlers, and ordinary
street life. It is, in effect, a type of "aesthetic policing" that fosters
a sterile, Disneyland, consumerist, commercial aesthetic. It reflects
a desire to transform New York City into Singapore, or worse, a shopping
mall. The truth is, however, that when we lose the dirt, grit, and street
life of major American cities, we may also threaten their vitality,
creativity, and character. <

Bernard E. Harcourt is Visiting
Professor of Law at Harvard University and author of Illusion of
Order: The False Promise of Broken Windows Policing

10 Adam Nagourney,
"Democrats Run In the Shadow Cast by Mayor," The New York Times,
2 September 2001.

11 George
L. Kelling and William H. Sousa, Jr., Do Police Matter? An Analysis
of the Impact of New York City's Police Reforms, Civic Report No.
22 (New York: Manhattan Institute, December 2001), 9.

12 George
L. Kelling and William H. Sousa, "Tough Cops Matter," New York Post,
19 December 2001.

13 Editorial,
"It's the Cops, Stupid," New York Post, 19 December 2001.

14 George
L. Kelling, "A Policing Strategy New Yorkers Like," The New York
Times, 3 January 2002.

15 In 1994,
a precinct was divided in two, resulting in seventy-six precincts existing
today. To maintain consistency over the studied period, the authors
use the original seventy-five precincts. See Kelling, Do Police Matter?
1, 4.

16 The method
they use is "hierarchical linear modeling," which is a variant of regression
analysis.

21 There
are a number of other weaknesses in Skogan's data and study. For example,
the survey question that was posed to neighborhood residents about robbery
victimization was not neighborhood specific. In addition, there was
a set of five neighborhoods in Newark that exerted excessive influence
on the robbery victimization findings. For criticism of Wesley Skogan's
study, see Bernard E. Harcourt, Illusion of Order: The False Promise
of Broken Windows Policing, (Cambridge, Mass.: Harvard University
Press, 2001), 59–78.

22 James
Q. Wilson and Barbara Boland, "The Effect of the Police on Crime," Law
& Society Review 12 (1978): 367–90; Wilson, "The Effects
of the Police on Crime: A Response to Jacob and Rich," Law &
Society Review 15 (1981): 163–9.

23 Robert
J. Sampson and Jacqueline Cohen, "Deterrent Effect of the Police on
Crime: A Replication and Theoretical Extension," Law & Society
Review 22 (1988): 166.

26Robert
J. Sampson and Stephen W. Raudenbush, "Systematic Social Observation
of Public Spaces: A New Look at Disorder in Urban Neighborhoods," American
Journal of Sociology 105 (2000): 637, 638.

27 See Jeffrey
Fagan, Franklin Zimring, and June Kim, "Declining Homicide in New York
City: A Tale of Two Trends," Journal of Criminal Law & Criminology
88 (1998): 1280–6.

28 See Ana
Joanes, "Does the New York City Police Department Deserve Credit for
the Decline in New York City's Homicide Rates? A Cross-City Comparison
of Policing Strategies and Homicide Rates," Columbia Journal of Law
and Social Problems 33 (1999): 303–4.

29 See Fox
Butterfield, "Cities Reduce Crime and Conflict Without New York-Style
Hardball," The New York Times, 4 March 2000. Statistics compiled
by Alfred Blumstein.

30 Judith A. Greene,
"Zero-Tolerance: A Case Study of Police Policies and Practices in New
York City," Crime and Delinquency 45 (1999): 182–5.

37 New York
State Division of Criminal Justice Services, Criminal Justice Indicators
New York City: 1992–2000, <http://criminaljustice.state.ny.us/crimnet/ojsa/areastat/areast.htm>
[12 March 2002].

38 Jeffrey
Rosen, "Excessive Force: Why Patrick Dorismond didn't have to die,"
New Republic,10 April 2000, 26; Eliot Spitzer, The New York
City Police Department's 'Stop & Frisk' Practices: A Report to the
People of the State of New York From The Office Of The Attorney General
(New York: Office of the Attorney General of the State of New York,
Civil Rights Bureau, 1999), 56–9. Available at: <http://www.oag.state.ny.us/press/reports/stop_frisk/stop_frisk.html>
[15 March 2002].

39 Marge
Cohen, New York State Division of Criminal Justice Services, fax to
author, 4 January 2002, data from UCR system and Computerized Criminal
History system.

41 Cohen,
New York State Division of Criminal Justice Services, fax to author;
U.S. Bureau of the Census, 2000 Census of Population and Housing:
Profiles of General Demographic Characteristics (Washington, D.C.:
U.S. Government Printing Office, 2001), Table DP-1, 345.

42 U.S. Department
of Justice, Bureau of Justice Statistics, Sourcebook of Criminal
Justice Statistics 2000 (Washington, D.C.: U.S. Government Printing
Office, 2001), Table 4.12, 372; for demographic data, see U.S. Bureau
of the Census, Profiles of General Demographic Characteristics,
Table DP-1, 2. Note that 13.2 percent of the population inside metropolitan
areas is African-American.